EDITORIAL: Loophole creates toothless tobacco ban

Until last week, all cigarette flavors were equal, then new Food and Drug Administration regulations made one flavor more equal than all the others. Because of a loophole written into the law, the FDA banned all flavored cigarettes except menthol. The only flavor sold by Philip Morris, the FDA’s industry ally in passing legislation to allow the ban, just happens to be menthol.

Sold as a way to protect public health, the ban is more flash than substance. At the time he signed the legislation President Obama crowed, “The decades-long effort to protect our children [has] emerged victorious. … Today, change has come.” Change came, but it didn’t do much when it got here.

Menthol is the No. 1 cigarette flavor used by underaged smokers and the most popular among all smokers. A menthol ban would have had many times the impact of banning all other flavors combined.

The menthol exception makes the new regulation particularly toothless among blacks. Mentholated brands are preferred by three-quarters of black smokers. Blacks tend to be more likely to smoke and to smoke more. As a result, blacks suffer a disproportionate share of lung cancer.

Consumers should be able to decide for themselves whether they want to smoke or go hang gliding or eat fattening ice cream, but even by the standards of nanny state advocates this rule is ludicrous. There is no logical health explanation for why menthol flavored cigarettes are allowed but other flavors are banned.

However, there is an economic reason for the distinction and for Philip Morris to be a cheerleader for regulation. The more regulatory hurdles faced by potential competitors, the easier it is for large tobacco concerns to keep their markets.

For instance, other rules require new tobacco products to get a difficult and costly to obtain marketing approval from the FDA. Under the new FDA flavor regulation many competitors’ brands are now being eliminated and Philip Morris doesn’t have to worry about them introducing new ones.

Even if the FDA were to grant approval for new products, still other government barriers exist to protect Philip Morris. As is well recognized in economics, government advertising bans protect dominant firms in an industry from pesky upstarts.

Indeed, while the television and radio advertising bans on cigarettes in the 1960s slightly decreased overall cigarette use over time, they also increased stock prices for large tobacco companies.

It is no surprise Philip Morris supported the new advertising bans that included the removal of tobacco advertising from sales counters in retail outlets and the elimination of many types of outside advertising. Without advertising or even showing the new cigarettes at retail counters, how can one even think of starting a new brand?

All the Big Brother health benefit rhetoric might have meant something if the single most popular flavored tobacco wasn’t excluded. Instead we get government-expanding regulation virtually guaranteed not to have an impact. That’s not change, that’s business as usual.